Case summaries
A person in detention pending deportation has a fundamental right to receive visitors -including visits from journalists -and inhibiting this visiting right for the person in detention can be challenged by way of appeal to the Independent Administrative Senate. A journalist, on the other hand, who has been refused a visit to someone in deportation detention, does not have a right of appeal, amongst other things, because the information which could be provided by the person in deportation detentionis not publicly accessible and there is thus no state obligation under Art 10 of the European Convention on Human Rights (ECHR) to facilitate access to this information by granting a visit to the person in deportation detention.
Foreigners who have lodged an application for international protection cannot be taken into detention pending deportation as a person remaining in the country unlawfully.
If a more recent application for international protection has been lodged in the transfer country, then the Applicant will again be assigned the status of an asylum seeker in accordance with the Dublin II Regulation. The (re-)receiving country must undertake an examination of the application for asylum made in another Member State, even if it is a “subsequent application”.
The ECtHR ruled that the detention of an Algerian national in a Bulgarian detention centre was in breach of Article 5(1) ECHR due to the length of the detention and the lack of diligence by the Bulgarian authorities when taking steps to carry out the applicant’s expulsion, and of Article 5(4) ECHR. Secondly the court considered whether the Bulgarian government had been in breach of Article 5 (4) due to the excessive delay until the applicant’s challenge against his detention was heard before a court.
The case concerns the unlawfulness of the detention pending expulsion for a total period of more than one year and eight months without effective judicial review of one of the applicants, Mr. Abas Amie (Articles 5 § 1, 5 § 4 of the ECHR); and an unlawful interference with the right to respect for family life, in breach of Article 8 of the ECHR, with respect to the other applicants, his family members.
The legality of an applicant’s detention in a Centre for Identification and Expulsion (C.I.E.), even where this satisfies legal requirements, should be assessed in the light of the compatibility of the applicant’s state of health with the type of assistance and support that the centre is able to provide.
Failure to integrate into the country, which is typically the case, does not constitute grounds for protection. Behaviour a long time previously in relation to the entry is not significant when assessing security requirements. Aggressive behaviour in the Federal Support Centre does not alone represent a need for security which justifies detention (deportation detention). Despite removal from the Federal Support Centre owing to this behaviour, this must not lead to an asylum seeker losing his entitlement to basic services.
The holding of two Somali nationals in a Maltese detention centre is declared not to be a violation of Article 3 of the Convention; the cumulative effect of the conditions of detention did not amount to inhuman treatment. The Court accepted that the detention, although lengthy, fell within Article 5 (1) (f). However, the Court declares a violation of Article 5 (4) as the applicants did not have access to judicial review of the decision to detain them, hence they could not challenge the lawfulness of detention.
The case examined the allegations of the applicants that their deportation to Moscow will entail a real risk of refoulement to Afghanistan where they fear treatment contrary to Article 3 of the Convention. Further, it examined the applicants’ complaints of a violation of their right to an effective remedy in conjunction with Article 3, invoking Article 13 of the Convention.
The Council of State found that a decision to extend the detention of a foreigner was a decision which adversely affected the individual. The principle enshrined in EU law of the rights of the defence applies to the preparation for this decision. Under this principle, according to the Council of State, the facts and circumstances forming the basis for the extension decision must be explained expressly and clearly to the foreigner, along with the legal consequences of the decision. Furthermore, a representative must be notified of the intention to issue a decision to extend detention of the foreigner, to enable the representative to support the foreigner in his response to the extension decision.
In a situation of unlawful detention – unlawful because it did not comply with national and European norms on the detention of illegally staying citizens – as well as inhuman and degrading conditions in the Identification and Expulsion Centre, the revolt by the four Defendants should be considered as proportionate and the alleged conduct should be treated as legitimate defence.